Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that ordinary employees cannot get reinstatement or injunctions—only compensation—unless a statute expressly protects their jobs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants presented an arguable case for consideration on appeal, under the Githunguri and J K Industries principles
- 2.Whether withholding the stay/injunction would render the intended appeal nugatory
- 3.Whether the applicants' contracts of employment with the University of Nairobi were statutorily underpinned, entitling them to equitable relief (injunction/declaration) rather than damages
- 4.Whether the Nyamogo ruling of this Court was correct and binding, and whether a bench of five judges should review it
Key legal issues
#Whether the applicants' employment was statutorily underpinned
It was not; no statute expressly guaranteed the lecturers' tenure, and only contracts of employment. Damages were the sole remedy for wrongful termination.
The court examined the University of Nairobi Act, the University statutes and the conditions of service, and found no provision protecting tenure. By section 19 of their terms of service lecturers could resign on notice; by section 23 the University could remove for good cause. The example of a statutorily underpinned office was the university auditor, whose termination needed ministerial and Auditor-General consent. Equitable remedies being mutual, lecturers who could not be compelled to serve by specific performance could not obtain specific performance or reinstatement against the University.
Whether the Nyamogo ruling binds and was correctly decided
It was decided per incuriam because the Court failed to construe regulation 5(1)(d) of the Pensions Regulations on which the Corporation relied, and wrongly granted an injunction against an act already completed; it is deprived of binding authority.
Regulation 5(1)(d) plainly authorised compulsory retirement for reorganisation, efficiency or economy, dispensing with prior notice. The Nyamogo court instead relied on regulation 8(2) (early retirement by agreement), an entirely different provision. Further, the retirement had already taken effect on 6 April 1993, so the October 1993 injunction was ineffectual in equity. The court constituted a five-judge bench to review the ruling and declined to follow it.
The principles governing stay of execution under rule 5(2)(b)
The twin tests are an arguable case and nugatory appeal, but their application depends on the facts of each case; here the applicants failed the arguable-case test.
Applying Githunguri and J K Industries, the court examined the ex facie merit of the legal argument, as Nyamogo itself had done. Since the lecturers' contracts were ordinary master-and-servant contracts with damages as the remedy, and their dismissal followed properly constituted disciplinary proceedings, no arguable case with probability of success was presented, and equitable relief was unavailable.
Whether the practice of constituting a five-judge bench to review doubtful decisions should be followed
Yes; in the absence of a second-tier appellate court in Kenya, a five-judge bench sensibly allows a wrong decision to be identified quickly.
The court invoked the practice adopted in Income Tax [1974] EALR 546 and Trouistik Union International v Jane Mbeyu, and preferred Viscount Dilhorne's speech in Hudson v Sainz that a clearly wrong recent decision is easier not to follow than an old one. Since even a five-judge court can only refuse to follow, not reverse, a three-judge ruling, certainty of the law demands prompt identification of error.
Legal principles established
#- A Court of Appeal decision rendered per incuriam does not bind the court or subordinate courts as precedent.
- Breach of a contract of personal service is redressed by damages, not by injunction, specific performance or declaration.
- Ordinary contracts of employment (e.g. university lecturers) are not statutorily underpinned unless a statute expressly guarantees tenure and prescribes conditions of removal.
- A discretionary administrative power exercised bona fide for the purpose for which it was conferred is not reviewable on its merits by the court.
- Equity will not grant an injunction that is ineffective or in vain because the act sought to be restrained has already occurred.
Court orders
#- 1.Dismissal of the applicants' application for stay of execution under rule 5(2)(b)
- 2.The applicants to vacate their university-provided official residences
- 3.If the applicants fail to enter into arrangements satisfactory to the University on or before 31st March 1994, an order for their eviction on 1st April 1994
- 4.The applicants to pay the costs of the application
- 5.Costs certified for the respondent for two counsel
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary jurisdiction to grant stay of execution/injunction pending appeal)
Relief refused
#Stay of execution of the High Court's refusal of a temporary injunction and interim restraint of eviction
The applicants' contracts were not statutorily underpinned; damages are the proper remedy for wrongful termination, so no arguable case meriting equitable relief was shown
Declaration of invalidity of termination and reinstatement-type equitable relief
Damages, not declaration or specific performance, redress breach of a contract of personal service
Costs
The applicants will pay the costs of this application; costs certified for the respondent for two counsel.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the Court omitted to do so, its decision was given per incuriam within the true meaning intendment of those words. That view is sufficient to deny the Nyamogo holding the authority of a binding precedent.
the well settled rule that a breach of contract of personal service cannot be redressed by the equitable remedies of injunction and specific performance remains good law
They cannot competently claim to be re-instated unless a statute to which they can point, expressly conferred this right on them and by that method, underpinned their continued employment.
The very first principle of injunction law is that prima facie, you do not obtain injunction to restrain actionable wrongs for which damages are a proper remedy
the relief which the Court could grant had to be considered on the basis of the facts as they were at the date of judgment, not as they were at the date of the filing of the plaint
Our order therefore, is that if the applicants fail to enter into arrangement satisfactory to the University on or before the 31st March next, there will be an order for their eviction from their university provided residences on the 1st April next.
The applicants will pay the costs of this application. In view of the complexity of the matters canvassed before us, we certify costs for the respondent for two counsel.
Issues in the judgment
#The judgment inconsistently renders the name of the leading injunction authority ('Geilla v Cassman Brown' at first mention, later 'Geilla guidance'), and the J K Industries citation is printed with an anomalous double year: '[1982 1988] 1 KAR 1088'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] KECA 75 (KLR)", Case Analysis (1994). Civil Application (Nairobi) – stay of execution application under rule 5(2)(b) (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/75/eng@1994-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.